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2022 DIGILAW 342 (KAR)

Jeffry v. Shanthi

2022-03-09

H.P.SANDESH

body2022
JUDGMENT H.P. Sandesh, J. - This petition is filed under Section 397 read with Section 401 of Cr.P.C, praying to call for the records and set aside the judgment of conviction and order on sentence dated 20.02.2018 in C.C. No. 54261/2014 passed by the LVII Additional ACMM, Bengaluru and the judgment and order dated 29.11.2018 in Criminal Appeal No. 25038/2018 passed by the IV Additional City Civil & Sessions Judge, Bengaluru and grant such other relief as deems fit in the facts and circumstances of the case. 2. Heard the learned counsel appearing for the petitioner and the learned Counsel appearing for the respondent. 3. The factual matrix of the case of the complainant is that the accused/revision petitioner has sought financial assistance of Rs. 2,00,000/- on 23.01.2014 for his domestic problem and business. The complainant advanced a sum of Rs. 2,00,000/- in cash on 24.01.2014. The accused assured to repay the said amount within a month and issued a cheque. When the cheque was presented, the same was returned with an endorsement as "Insufficient Funds". Thereafter, a legal notice was issued to the accused. In spite of service of notice, the accused failed to comply with the notice and not come forward to pay the cheque amount. Hence, a private complaint was filed and cognizance was taken. 4. The complainant in order to substantiate her contention examined herself as P.W. 1 and got marked the documents Exs. P1 to P6. The accused also examined himself as DW. 1 and got marked the document as Ex. D1. 5. The Trial Court after considering both oral and documentary evidence placed on record convicted the petitioner herein and sentenced to pay a fine of Rs. 5,000/-. In default to pay the fine amount, the accused shall undergo simple imprisonment for a period of three months. Acting under Section 357 of Cr.P.C, the compensation is awarded and the accused shall pay compensation of Rs. 3,46,000/- to the complainant. In default to pay compensation, the accused shall undergo simple imprisonment for a period of one year. Being aggrieved by the said judgment of conviction and order on sentence, an appeal was filed in Crl.A. No. 25038/2018. The Appellate Court on re-appreciation of evidence comes to the conclusion that Ex. P1 is admitted by the petitioner herein and taken note of Exs. Being aggrieved by the said judgment of conviction and order on sentence, an appeal was filed in Crl.A. No. 25038/2018. The Appellate Court on re-appreciation of evidence comes to the conclusion that Ex. P1 is admitted by the petitioner herein and taken note of Exs. P2 to P6 by drawing the presumption under Section 139 of the N.I. Act, confirmed the order of the Trial Court. Hence, the present revision petition is filed before this Court. 6. The main contention of the learned counsel appearing for the petitioner before this Court is that the Trial Court has committed an error in not considering the factors like the awarding reasonable opportunity to cross-examine the complainant in order to rebut the presumption which was not being given to the petitioner when an application is filed before the Trial Court for further examination of the witness and the same was rejected. The learned counsel also would submit that the complainant was not having any financial capacity to pay the amount of Rs. 2,00,000/-. In spite of it, the Trial Court has convicted the petitioner. The complainant has not discharged his initial burden. Hence, ought to have acquitted the petitioner. The Trial Court committed an error by venturing in to compare the signatures that too when the signatures are disputed and in the absence of obtaining the expert opinion it ought not to have held that the petitioner guilty by assuming the things which clearly shows the Trial Courts have not acted judiciously. Hence, it requires an interference of this Court. 7. Per contra, the learned counsel appearing for the respondent/complainant would submit that P.W. 1 was cross-examined and subsequently an application is filed for recalling for further cross-examination and the same was rejected and attains its finality. The same was not questioned. The Trial Court as well as the Appellate Court both have considered the material available on record. On appreciation of legal evidence available before the Court rightly comes to the conclusion that the defense of the accused is not specific, the accused imagine that his wife might have taken his cheque and handed over the cheque to the complainant but it is not certain. He has not made any specific allegation against his wife or the complainant that the signed cheque has been stolen by his wife and handed over to the complainant. He has not made any specific allegation against his wife or the complainant that the signed cheque has been stolen by his wife and handed over to the complainant. In spite of the filing of this complaint, no legal action has been taken by the accused against the complainant or his wife claiming that the cheque has been stolen or misused by them. It is also observed that when the defence of the accused cannot be accepted, the case of the complainant has to be accepted that the cheque was given in favour of the complainant towards discharge of legally enforceable debt. In paragraph No. 18, the Trial Court has considered the said defense. 8. The learned counsel also would submit that in Criminal Appeal, the Appellate Court in detail discussed the material on record and also in paragraph No. 17 even considering the written submission filed by the learned counsel for the complainant and considering the document - Ex. D1, wherein, only an endorsement on NCR is not relevant on the part of the NI Act case. There is no complaint with reference to the case related to the cheque and only family dispute is disclosed in the cross-examination of P.W. 1, which is also taken into consideration by the Trial Court. Hence, the Trial Court has not committed any error. 9. Having heard the respective counsel and also on perusal of the material available on record, the main contention of the learned counsel for the petitioner before this Court is that both the Courts have not considered the material available on record. No doubt, the complainant is the relative of the wife of this petitioner and the same is not enough to doubt the case of the complainant. The very contention that the cheque has been disputed. However, the Trial Court has gone to the extent of comparing the signature and not taken any expert opinion and the same is not forbidden under Section 73 of the Evidence Act, the Court can compare the signature. When the accused took the defense and dispute the signatures available on cheque, the accused ought to have obtained the opinion from the FSL sending the document for handwriting expert. Mere taking of defense is not enough. Hence, the Court has compared the signature available on cheque invoking under Section 73 of the Evidence Act. When the accused took the defense and dispute the signatures available on cheque, the accused ought to have obtained the opinion from the FSL sending the document for handwriting expert. Mere taking of defense is not enough. Hence, the Court has compared the signature available on cheque invoking under Section 73 of the Evidence Act. When such being the factual aspects of the case, the very contention of the learned counsel for the petitioner that both the Courts have committed an error in appreciating the evidence cannot be accepted. 10. It is also important to note that both the Courts have taken note of Ex. D1; no other documents are placed even regarding lodging of complaint for loss of cheque. The judgment of the Apex Court in the case of Uttam Ram v. Devinder Singh Hudan and another reported in (2019) 10 SCC 287 , categorically held that inconsistencies regarding the amount due, not made out, as amount due stood crystallized in written document against which cheque in question was issued. Defence that cheque book was lost/stolen or that cheque was misused was completely without basis. The Apex Court considering the defense also reverse the finding of acquittal and convicted the accused. Hence, the principles laid down in Uttam Ram's case (supra), aptly applicable to the case on hand. Hence, I do not find any reason to admit the matter by exercising the revisional jurisdiction and no grounds are made out to admit and reverse the finding of the Trial Court. 11. In view of the discussions made above, I pass the following: ORDER The Revision Petition is dismissed.